Texas Family Law Resources

Sometimes, marriage between two people just does not work out. Even if you are the one wanting the divorce, it can be a painful process. Disagreements can drag a divorce out, especially involving large assets or minor children. The experienced family law attorneys at Cordell & Cordell advocate for men in family law matters, serving as their advisors and helping them have their day in court. We are here to help guide you through your Texas divorce.

Read through our Texas divorce and child custody articles to gain a better understanding of the road ahead. Educating yourself about the divorce process in Texas will improve your ability to communicate with your divorce lawyer, which goes a long way toward helping you reach your goals in Texas Family Court.

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Texas Divorce Process

The divorce process in Texas begins when one spouse (the “petitioner”) files a petition for divorce in district court. The petition must state the grounds for divorce and describe what the petitioner wants the court to do. A divorce must address property division, and it may also need to address the following issues:

• Child custody and visitation rights;
• Child support; and
• Spousal maintenance.

The petitioner must arrange to have their spouse (the “respondent”) served with the petition and other court paperwork. They can have a constable or a private process server do this. The respondent can also sign an affidavit waiving their right to service of process.

In an uncontested divorce, the spouses can negotiate a settlement agreement and draft a divorce decree. Texas law requires a 60-day waiting period before a court can grant a divorce. At the end of that period, the spouses can go to court and ask a judge to sign the agreed-upon divorce decree. The divorce becomes final when the judge signs the decree and the spouses file it with the district clerk.

A divorce is contested if the spouses do not agree on some or all of the terms. A contested divorce might include the following steps:

1. The respondent files an answer with the clerk. They may also file a counter-petition for divorce.
2. Either party may schedule a hearing on temporary orders addressing issues like child support, child custody, and use of the marital residence. These orders remain in effect until the court issues new orders or grants a final decree of divorce.
3. The parties can request documents and other evidence from one another in a process known as “discovery.”
4. The case could go to mediation, where a neutral mediator tries to help the parties reach a settlement agreement.
5. If the parties still cannot agree, they can schedule a trial. Most divorce cases involve a bench trial, which means that the judge will decide all of the issues. It is possible to have a jury trial in a Texas divorce, but these are rare.

Related Article: Divorce in Texas: Texas Divorce Law FAQs

Grounds for Divorce in Texas

There are seven grounds for divorce allowed under Texas law.

1. Insupportability
2. Living apart
3. Confinement
4. Cruelty
5. Abandonment
6. Conviction of a felony
7. Adultery

Insupportability means “discord or conflict of personalities” that has prevented any “reasonable expectation of reconciliation.”

Another ground for divorce is living apart. This ground requires that the “spouses have lived apart without cohabitation for at least three years.”

The third ground for divorce is confinement in a mental hospital, which requires that one spouse be confined in a state or private mental hospital for at least three years, plus the requirement that “the mental disorder is of such a degree and nature that adjustment is unlikely or that, if adjustment occurs, relapse is probable.”

The next ground is cruelty, which occurs when one spouse treats the other spouse cruelly and living together is insupportable.

Abandonment can also be a reason for divorce and requires that one spouse has “left the complaining spouse with the intention of abandonment; and remained away for at least one year.”

Conviction of a felony and adultery are the last two grounds. It is important to note that the person alleging grounds for divorce must also prove those grounds. For example, when a spouse suspects adultery, that spouse may not be able to prove the adultery occurred.

Related Article: The No-Fault/Fault-Based Divorce Debate

Texas Residency Requirements

In order to file for divorce in Texas, certain residency requirements must be met. First, a party must be a domiciliary of the state for the preceding six-month period. A domiciliary of the state means a person who primarily lives in that state.

The second requirement is that a party must be a county resident in which the suit is filed for the preceding 90-day period. However, a spouse who does not live in the state may file a case against a spouse who lives there as long as that spouse meets both of the abovementioned requirements.

Texas Property Division Process

Texas has three basic categories of property in divorce cases: separate property, community property, and mixed property. State law presumes that all property is community property, which means it belongs to the marriage, not an individual spouse.

Texas defines separate property as:

• Property “claimed or owned” before the marriage;
• Property acquired by gift or inheritance; and
• Settlements or awards for personal injuries, with some exceptions.

A spouse can rebut the community property presumption by showing that the property is their separate property. This is a heavy burden of proof, but it is possible with enough documentation and evidence.

Property becomes mixed when both the community estate and one spouse’s separate estate have an interest in it. One estate may have a right to be reimbursed from the other estate.

Debts fall into the same categories. A debt incurred during the marriage, for example, is presumed to be a community debt unless evidence shows that a lender agreed to look solely to one spouse’s separate estate to satisfy the debt.

Once a court has determined the character of the assets and debts, it will divide the community estate based on what is “just and right.” This standard requires the court to consider numerous fact-specific factors.

Related Article: 10 Quick Property Division Tips

Settlement Agreements in Texas Divorce

Texas courts look favorably upon amicable agreements and settlements of domestic disputes. The Texas Family Code provides that parties may enter into a “written agreement concerning the division of the property and the liabilities of the spouses and maintenance of either spouse,” and this agreement can be revised or repudiated before a divorce or annulment is granted unless provided for in another rule or law.

Furthermore, if the court finds that the terms of the agreement are “just and right,” then the terms are binding. If the court finds that the terms are not “just and right,” the court may have the spouses submit another amended agreement or even set the case for a contested hearing.

Texas Child Custody Laws

In Texas, courts divide “child custody” issues into two categories:

• Conservatorship; and
• Possession and access.

Conservatorship consists of parents’ rights and duties, including decisions for the child regarding schooling, medical and psychiatric care, and other important matters.

Courts can grant two types of conservatorship:

• Joint Managing Conservatorship: Both parents have the right to make important decisions affecting the child’s health, education, and welfare. They can make some decisions independently, but they must consult with one another on major decisions, such as invasive medical treatments or significant changes to a child’s education.
• Sole Managing Conservatorship: One parent has the exclusive right to make major decisions for the child. They do not need to consult with the other parent in advance, but they might need to notify them. Either parent can still make relatively minor decisions for the child during their periods of possession.

Courts consider many factors when determining the rights and duties of the parent(s). The most important consideration is what will be in the “best interest” of the child.

Possession and access refer to physical custody of and visits with the children. Texas has two statutory possession and access schedules: standard and extended standard. These schedules dictate the time each parent spends with the child, but only when the parents cannot agree on a schedule.

Courts encourage parents to agree on possession and access schedules that meet their needs and their child’s needs. A court can order a different possession and access schedule based on the best interest of the child.

Texas Child Support

Texas law provides that the duty by either or both parents to support a child until one of several events occurs.

Child support generally ends when the child is 18 or graduates from high school, whichever comes first, or may end when the child is emancipated or the child dies. If a child is disabled, the court may order child support for an indefinite period.

There is a presumption that the amount of child support is computed as a percentage of the paying party, known as the obligor’s monthly net resources, based on the number of children for which support is obligated. This is known as “guideline support.”

The basic calculation for guideline support begins at 20% of the obligor’s net resources for one child, increasing by 5% for each child until six children, at which point the amount is not less than the amount for five children. A party can ask for more than guideline support by showing that it is in the best interest of the child to deviate from those guidelines. It is also important to note that there is a maximum amount of child support that the court can order.

Temporary Orders During a Texas Divorce

Legal separation is not recognized in Texas. However, upon filing a divorce or other family matter, a party may request the court enter a temporary order during the course of the case.

Temporary orders allow the parties to get agreed upon or court-ordered “rules” governing various aspects of the domestic arena, including child conservatorship, possession and access, child support, property division, spousal support, and various other items.

Paternity as it Relates to Texas Divorce

Texas law provides several ways to establish paternity:

• Presumption of paternity: State law presumes that a man is the father of a child born during his marriage to the mother. He can challenge this presumption in court, or another man can acknowledge paternity. This must occur before the child’s fourth birthday.
• Voluntary acknowledgment of paternity: A man can sign an affidavit acknowledging that he is a child’s father. This has legal effect if the form meets the Texas Family Code’s requirements and the mother also signs it.
• Adjudication of paternity: A man can file a Suit to Adjudicate Paternity or dispute paternity in an ongoing divorce or child custody case. The court may order DNA testing to determine whether he is the father.

Related Article: How Paternity Fraud Devastates Entire Families

Texas Spousal Support

Texas family law uses the term “spousal maintenance” instead of “alimony.” Spousal maintenance may be available in two specific circumstances:

• The spouse from whom maintenance is requested was convicted or received deferred adjudication for family violence no more than two years before the date the divorce proceeding began; or
• The marriage lasted more than ten years, the spouse seeking maintenance does not have enough resources to provide for their “minimum reasonable needs,” and:
  • They cannot support themselves because of an incapacitating physical or mental disability;
  • They are the custodian of a child of any age who needs substantial care because of a physical or mental disability, making it impossible for them to obtain outside employment; or
  • They do not have the earning ability to provide for their minimum needs.

The court will review specific statutory factors when determining the “nature, amount, duration, and manner of periodic payments.” These include the length of the marriage, the standard of living enjoyed during the marriage, and each spouse’s health and earning capacity.

Typically, a spousal maintenance obligation is limited to five to ten years. The Texas Family Code does provide an exception that allows lifetime maintenance if a spouse is permanently disabled. The maximum amount of spousal maintenance that a court may order a spouse to pay is $2,500.00 per month or 20% of the spouse’s gross monthly income, whichever is less.

Related Article: Will I Have To Pay Alimony?

*Jenkins, Joan Foote and Wilhite, Randall B., O’Connors Texas Family Law Handbook, 120 (2010).

Why Work With Cordell & Cordell

Cordell & Cordell has decades of experience helping men deal with the emotional and financial challenges of divorce. Our thousands of satisfied clients understand that we are here to help them get through the most difficult challenges they have faced.

“My attorneys have been great over the 4 years of my case. The support I have received from the firm over the duration of my case has been outstanding. My attorneys treated me as a person and not just as another case. I felt they were concerned about the issues I was personally facing and that meant a lot to me. Thank you!” – Brian H.

“I am very very happy. [My attorney] was timely with responses and that is not something you get often these days so that really stood out. She was very personable and didn’t speak like a robot like some polished people in suits do. I really felt like she was on my side.” – Robert S.

“[My attorney’s] ability for depositions was great. He’s really good with questions and keeping things on track and organized mentally. He’s a great attorney.” – Jonathan U.

Providing Helpful Divorce Resources Across the Nation

Cordell & Cordell is a family law firm helping men with various family law issues. This page serves as a resource and is not to be taken as legal advice. To learn more, contact the firm today by calling 866-DADS-LAW (323-7529) or filling out our online contact form.